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ELCAllowedNotice of Motion dated 18th April 2018· [2021] KEELC 3148 (KLR)

County Government of Tana River v Dakane Shake Bocha & 10 others [2021] KEELC 3148 (KLR)

Environment and Land Court
28 May 2021
ECE. C Cherono
2,293 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court stopped the sale of unregistered community land, confirming counties can't dispose of land they hold in trust for communities.

What this practically means

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Executive summary

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The County Government of Tana River moved the court by Notice of Motion dated 18th April 2018 seeking a temporary injunction restraining the 1st-10th Respondents from dealing in, disposing of or interfering with an unsurveyed, unregistered parcel of community land at Hagulcho area (the Buyotu Bario farm), pending determination of the substantive suit, and seeking police enforcement of the orders. The Applicant, invoking Section 6 of the Community Land Act No. 27 of 2016, contended it holds unregistered community land in trust for the residents of Hagulcho, and that the 1st-10th Respondents had, without authority, purported to sell the suit property to the 11th Respondent under a sale agreement of 6th November 2017, despite warnings and consultative meetings forbidding such disposal. None of the Respondents filed a replying affidavit or grounds of opposition, leaving the application unopposed and the supporting affidavit uncontroverted. Applying the Giella v Cassman Brown principles, and the definition of a prima facie case in MRAO Ltd v First American Bank, the court was satisfied that a prima facie case existed: the property is unregistered community land held in trust by the county government, which the law prohibits it from selling or disposing of, and the Respondents' purported sale was unchallenged. On irreparable injury, guided by Marple Brooks Projects v I&M Bank, the court held that the community would suffer irreparable loss of ancestral land not compensable in damages. The court allowed the application as prayed, granted the temporary injunction and ordered the OCS Madogo to enforce it, with costs jointly and severally against the Respondents.

Key legal issues

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01

Prima facie case

Holding

The Applicant established a prima facie case that the suit property is unregistered community land held in trust by the County Government

Reasoning

The uncontroverted affidavit evidence of the County Attorney showed the suit property is unsurveyed, unregistered community land held in trust under Section 6 of the Community Land Act, and that the 1st-10th Respondents purported to sell it to the 11th Respondent without authority, apparent infringement calling for rebuttal.

p. 4
02

Irreparable injury

Holding

Irreparable loss was established since damages could not compensate the loss of ancestral community land

Reasoning

The court found that the Applicant and the people of Hagulcho area would suffer irreparable loss if the orders were not granted, since loss of ancestral land and livelihood could not adequately be compensated in damages; uncontroverted affidavit evidence supported this finding.

p. 4

Legal principles established

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  • County Governments hold unregistered community land in trust for communities and may not sell or dispose of it
  • Interlocutory injunctions are governed by the Giella principles

Court orders

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  1. 1.Temporary injunction restraining the Respondents jointly and severally, their agents, servants and assigns from dealing in, disposing of, erecting structures on, or interfering with the Local Community's use and quiet possession of the suit property pending determination of the substantive suit
  2. 2.Officer Commanding Madogo Area Police Station directed to enforce compliance of the orders
  3. 3.Respondents to bear the costs of the application jointly and severally

Authorities

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Legislation

  • Community Land ActSection 6

Cases cited (4)

  • Giella –Vs- Cassman Brown Company Limited
    (1973) EA 358
  • MRAO LTD –VS- FIRST AMERICAN BANK OF KENYA LTD & 2 OTHERS
    Civil Appeal No. 39 of 2002
  • Marple Brooks Projects Company Limited & Another –Vs- I&M Bank Limited
    (2019) eKLR
  • Kanorero River Farm Ltd and 3 Others v National Bank of Kenya Ltd
    2002 2 KLR 207
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to community land; Section 6 of the Community Land Act No. 27 of 2016

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "County Government of Tana River v Dakane Shake Bocha & 10 others [2021] KEELC 3148 (KLR)", Case Analysis (2021). Notice of Motion dated 18th April 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3148/eng@2021-05-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.